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From this morning’s protest outside the FCC building in Washington, D.C. (Photo by Kate Cox)

As predicted, the five FCC commissioners voted 3-2 today to approve Chairman Tom Wheeler’s latest version of the Open Internet rule — better known as net neutrality — with a slightly revised take on so called Internet “fast lanes,” which would have given Internet service providers like Verizon and Time Warner Cable the ability to charge content companies extra for higher priority access to end users.

The proposal as passed by the commission does not explicitly throw open the door for ISPs to start charging for fast lanes, but it doesn’t throw a deadbolt on that door either.

Instead, it assumes that all such pay-for-priority deals are against the rules “until proven otherwise,” meaning ISPs would be given the opportunity to plead for an exception that would allow a fast lane.

The FCC views this presumption of illegality as a “rebuttable” one, so ISPs are free to make these deals so long as they can justify them to the commission. Others believe it may be as simple as making fast lanes available (but not necessarily affordable) to all in order to get around the exclusivity issue. If an ISP offers Netflix and some startup called Jim’s Streaming Service the same fast lane access for the same price, but only Netflix can afford it, that’s not really an “exclusive” deal in the strictest sense of the word.

And it would still have the same effect of only allowing only the wealthiest content providers access to the end users. This flies in the face of the basis of net neutrality, which is the idea that ISPs are supposed to be non-discriminating conduits carrying data back and forth between end-users and content content providers without regard to the content or source/destination of that data.

“The FCC tried to soften the blow by asking better questions about net neutrality and ‘pay-to-play’ deals, but the underlying plan is still far from neutral,” explains our colleague Delara Derakhshani, policy counsel for Consumers Union. “Net neutrality means all online content is treated equally. But under these rules, Internet providers could make one site available faster than another. Your provider could play favorites among the online companies that pay to play. These proposed rules could eventually mean an end to the free and open Internet as we’ve known it.”

The proposal does include the previously reported last-minute additions from Wheeler that seek public opinion on a couple of matters. First, if there should be an outright ban on fast lanes. The answer, in our opinion, is yes. Of course, a federal appeals court made it clear earlier this year that the FCC doesn’t currently have the authority to enact such a ban because the commission previously screwed up and miscategorized broadband as an information service instead of a telecommunication service.

Which brings us to the second question up for discussion in the FCC proposal — whether or not to reclassify broadband. Neutrality supporters have largely agreed that this is the best and only way to give the FCC the authority to keep the Internet neutral. In defending his decision not to go that route, Wheeler has previously stated it was a matter of expediency; get some half-arsed version of net neutrality on the books now rather than start a protracted legal battle with ISPs over reclassification.

But as I argued the other day, this is a battle that needs to happen, and it should happen now. The Internet is no longer a place for chat rooms and e-mail is a vital part of our personal, cultural, and economic infrastructure that needs to be recognized as having as much impact — if not more — than the already regulated telephone industry.

“We still believe the best way to ensure an open Internet and protect consumers is reclassifying the Internet as a public utility,” says Derakhshani. “We are going to reach out to consumers across the country and urge people to speak out during the comment period. A handful of powerful Internet providers like Comcast and Verizon shouldn’t be able to dictate the future of the Internet.”

One additional question being asked during the public comment period is whether or not to extend the full Open Internet rule to wireless providers. The 2010 version of the rule — the one gutted by the appeals court — were more lenient toward wireless providers, but considering how omnipresent wireless data has become and will continue to become, many advocates believe that wireless data needs to be regulated in the same was as terrestrial broadband.

Because there are so many questions and so many stakeholders, the FCC is extending the public comment period on this proposal and these questions to four months, split into two sections: For the first 60 days (until July 15), the FCC will continue accepting initial comments on this proposal. It will then extend comments for another 57 days until Sept. 10 for people to file reply comments.

There have already been more than 30,000 comments filed on this issue, and now that the FCC has officially asked the questions about banning fast lanes and reclassifying broadband, we hope that people will continue to express their opinions in order to counter the propaganda being tossed at lawmakers by the cable and telecom industries.

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